Citation Nr: 1500618
Decision Date: 01/07/15 Archive Date: 01/13/15
DOCKET NO. 09-26 029 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to a total disability evaluation based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph R. Keselyak, Counsel
INTRODUCTION
The Veteran had active service from July 1962 to July 1966.
This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran was afforded a Travel Board hearing in April 2011. A transcript of the testimony offered at the hearing has been associated with the record.
In December 2011 the Board remanded the claim for further development. The matter now returns to the Board.
In a July 2012 rating decision, the RO granted entitlement to service connection for cognitive disorder, not otherwise specified (NOS) (claimed as dementia, depression, anxiety and mood disorder), secondary to service connected type II diabetes mellitus, as well as service connection for hypertension. In a September 2012 rating decision, the RO also effectuated a 10 percent evaluation for trigeminal crania nerve, facial neuropathy, effective May 24, 2011. The Veteran has not appealed those determinations; nevertheless, they are relevant to the issue of entitlement to a TDIU that returns to the Board.
The Veteran has raised the issue of entitlement to service connection for bladder and bowel impairment. See statement of September 2009. As these matters have not been adjudicated, they are referred to the RO for the appropriate consideration.
FINDINGS OF FACT
The competent and probative evidence of record supports a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.
CONCLUSION OF LAW
The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.
The Veteran seeks a TDIU and the evidence indicates that he last worked in November 2007 as a career counselor/facilitator. Service connection is in effect for type II diabetes mellitus (DMII) evaluated 20 percent disabling since March 9, 2007, and numerous complications thereof. Currently, service connection in effect for the following secondary conditions: 1) cognitive disorder, not otherwise specified, (NOS), evaluated as 50 percent disabling, effective May 24, 2011; 2) peripheral neuropathy of the left upper extremity evaluated 10 percent disabling since January 9, 2004; 3) peripheral neuropathy of the right upper extremity evaluated 10 percent disabling since January 9, 2004; 4) peripheral neuropathy of the left lower extremity evaluated 10 percent disabling since January 9, 2004; 5) peripheral neuropathy of the right lower extremity evaluated 10 percent disabling since January 9, 2004; 6) trigeminal cranial nerve, facial neuropathy, evaluated non-compensable since November 20, 2007 and as 10 percent disabling since May 24, 2011; and 7) hypertension evaluated non-compensable since May 24, 2011. Service connection is also in effect for tinnitus, with a 10 percent evaluation, since January 9, 2004.
As noted above, effective May 24, 2011, the RO granted service connection for cognitive disorder, NOS, with a 50 percent evaluation. The Veteran has not appealed that determination. Overall, the Veteran's disability evaluation has been 60 percent since March 9, 2007, before he quit working in November 2007. It has been 80 percent since May 24, 2011.
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013).
"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2013).
It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).
A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2013).
Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2013).
The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired].
In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013).
Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The SSA decision of record reflects the agency's finding that the Veteran had not engaged substantially gainful activity since November 16, 2007, and that he had severe impairments, namely, diabetes mellitus, peripheral neuropathy and tinnitus.
SSA records disclose treatment and complaints for diabetes mellitus and peripheral neuropathy, as well as tinnitus. The records also document severe memory loss related to Zocor, and that the Veteran was due to retire from work due to speech and associated difficulties with his neuropathy. See e.g. October 2007 record from Dr. Stewart.
VA medical records document complaints of tinnitus, and treatment for diabetes mellitus and associated neuropathy. A May 2007 diabetes examination report shows diabetes was reportedly well-controlled with diet and exercise. Examination of the extremities was normal, as was neurologic examination. Speech was normal. There was slight decrease in vibratory and soft touch in the bilateral upper and lower extremities, from the fingertips to the mid-forearm, and feet to the knees, worse distally and laterally on the legs. Cranial nerve functions were normal. Deep tendon reflexes were 1+ in the upper and lower extremities. The Veteran was then working full time, with no visual impairment, although the present neurologic disease was noted. The examiner found mild effects of the condition on chores, shopping, exercise, recreation, travelling and feeding, as well as moderate effect on sports; there was no effect on bathing, dressing, toileting, grooming or driving.
A June 2007 VA record documents assessed diabetic neuropathy, and facial parasthesias suggestive of Trigeminal nerve dysfunction. Facial movement was symmetrical with no synkinesia. Examination of the cranial nerves was normal but for light touch and pain sensation decreased in the facial area. Motor examination was 5/5 bilaterally. The Veteran's Gabapentin was increased. Subsequent brain MRI was normal. See June 2007 VA record.
A September 2007 neuropsychological consultation is within the SSA records. At this time, the Veteran complained of difficulty with confusion, losing gaps of time, and mental mistakes. He noted that the symptoms had occurred when he was taking a Statin drug, and had improved since he stopped taking it. The Veteran also thought some speech problems were present, which he was concerned were worsening. Several psychiatric diagnostic tools were used to evaluate the Veteran. Overall examination resulted in assessment of neuropsychological test results within normal limits and "psychological factors affecting a medical condition," rule-out somatization and underlying depression. The examining doctor noted that the test results were within normal limits, but noted stress related to the decline in his health, including peripheral neuropathy. Diagnostic testing showed essentially normal neurological psychological test results. Some histrionic traits were indicated, as was emotional disruption due to stress, particularly caused by the decline in his health caused by peripheral neuropathy. However, no diagnosis was made. A GAF of 72 was assigned.
In November 2007, the Veteran filed his claim, indicating that his diabetes and neuropathy prevented him from securing or following any substantially gainful occupation. He noted that he had neuropathy of the face, lips and tongue, as well as his extremities, He related that he had just left his last job because his speech was defective due to neuropathy. He related that his "motor nerves" were affected in such a manner that he was unable to function properly.
The record documents that in November 2007 the Veteran quit working as a career counselor for health reasons. See VA Form 21-4192 dated in April 2008.
SSA records contain an examination and assessment of the Veteran dated in February 2008. At this time, the Veteran related having worked as a career counselor, but stopped working on November 16, 2007, due to "some speech pronunciation problems." The Veteran reported numbness from the feet to knees, from his forearms to his hands, across his face and then into his tongue and mouth. He also related "roaring sensation" in his ears, and that he could not "sense his body functions and had difficulty with his bowels." He walked regularly and for a considerable distance, but related difficulty with hearing and speech, and a history of tinnitus and Bell's palsy in 1996.
He was able to perform the activities of daily living, but stated that he could not do part-time work due to the numbness of his hands, legs and face, and problems with bowel and bladder control. On physical examination, he was alert and appropriately concerned, oriented times 3 and in no acute distress. He was fluent in his vocabulary and an excellent historian. He had no evidence of any slurring of words or stuttering. Range of motion was normal. He was fluent in speech and the higher cortical functions were intact. There was no difficulty in communication. Memory was intact. Receptive and productive speech were normal. He had excellent control of his language. Cranial nerves II-XII were intact. Strength was 5/5. Sensory was intact, as were cold and vibratory senses. Gait, coordination and station were normal. Non-insulin dependent DMII, peripheral neuropathy of the extremities by history, exposure to Agent Orange by history with normal neurologic examination, were assessed.
The examining doctor specifically addressed functional assessment, finding that the Veteran could stand and walk for 5/8 hours per day, sit 6/8 hours per day, did not use or need any assistive devices, could lift and carry frequently up to 10 to 15 pounds and occasionally 20 to 30 pounds, could bend, stoop, crouch, crawl and climb, as least occasionally. The Veteran had no manipulative limitations with reaching, handling feeling, or grasping. Saliently, he had no relevant visual, communicative or workplace environmental limitations.
Following the Veteran's claim for a TDIU, the Veteran was afforded a VA examination in May 2008 to address his diabetes mellitus and neuropathy. Examination of the cranial nerves, with review of the claims file, documented a complaint of a dull feeling around the back of the head that had progressed to the entire face. The Veteran felt that he could not control his facial muscles to talk or control his face properly, He complained of occasional pain, as well. He was taking Neurontin. There was a history of mild weakness or paralysis of the facial muscles, with mild severity of difficulty speaking. There was decreased sensation to pain and light touch, but not temperature for the trigeminal nerve. Examination of the facial nerve, in particular those relating to facial expression, was normal. Speech was normal and the hypoglossal nerve was normal. Mental status was alert and oriented times 3. Motor exam was 5/5 bilaterally. Diabetic peripheral neuropathy, status-post Bell's Palsy in 1996 and facial paresthesia suggestive of trigeminal nerve dysfunction were assessed.
In terms of employment, this examination report reflects that the Veteran was not employed, and not retired. He gave "medical" as the reason for his unemployment. The examiner summarized facial neuropathy, bilateral, with mild effects on feeding. She commented that the Veteran may have some subjective episodes of difficulty speaking, but during the 90 minute to 2 hours of the examination he exhibited no objective difficulty speaking.
VA examination also addressed the associated peripheral neuropathy of the extremities. There was no motor loss. Coordination and orientation were normal, as were speech and memory. Sensory loss was present, and characterized as a slight decrease in vibratory and soft touch to the extremities, from the fingertips to the mid-forearms bilaterally, and the feet to the knees bilaterally, worse distally and laterally on the legs. Numbness was reported from the knees to toes and elbows to fingertips. The upper and lower extremities had equal 5/5 strength. The examiner found mild effects on most daily activities, but none on feeding, bathing, dressing, toileting or grooming. Subsequent medical records document treatment of diabetes and its associated complications.
In a June 2009 statement, the Veteran asserted that in their entirety, his service-connected disabilities prevented him from working. He related that his neuropathy had spread to his face, lips and tongue and that he had left his last job due to speech difficulties. He complained that his "motor nerves were affected in such a manner" that he could not function properly.
Of record is a June 2009 brain emission tomography report from Life Bridge diagnostics. The report notes a clinical indication of loss of senses and dioxin exposure. The report notes an impression of extensive hypoperfusion of the frontal lobes, temporal lobes, parietal lobes, cerebellar hemispheres and the proximal brainstem. The report notes exposure to neurotoxic substances, e.g. Agent Orange, were a factor. The report goes on to note likely indication of anxiety state disorder, and an underlying element of executive dysfunction. The report discloses that the findings were not diagnostic of any medical or psychiatric disorder, however.
A July 2009 letter from Dr. Stewart accompanies the tomography report. In the letter, he notes that the Veteran's diabetes was under excellent control. In terms of neuropathy, he noted additional symptoms with worsening tinnitus. The Veteran related that his face felt like a mask, and reported poor taste and smell. He complained of being unable to pick things up due to numbness. The doctor remarked that he had taken care of the Veteran for over 18 years, stating that in his opinion the Veteran was completely disabled from work due to increasing sensory peripheral neuropathy in the hands and lower extremities.
Ultimately, in August 2010, the Veteran was awarded SSA disability benefits, effective November 16, 2007. The agency decision notes a finding that the Veteran's symptoms of tingling, numbness and diminished sensation did not allow him to perform standing, walking, sitting or lifting, and had a requirement of even less than sedentary work given his pain and the impact of the neuropathic symptoms had on day-to-day functioning.
In April 2011, the Veteran testified before the Board. At this time, the Veteran explained that it all began with a numbness of his face. He related that when he would speak with clients as a career counselor, he had problems with his words not working properly and that he frequently mispronounced them. He also complained of ringing in his ears. He noted that his taste and smell were affected. In terms of employment history, he stated that he had worked as a consultant in April 2008, but only for a short time. He explained that he left that job and was unable to properly communicate, noting that his facial paralysis had caused difficulty with communication. He and his representative referenced the favorable SSA award. In terms of tinnitus, he related a history of roaring on top of ringing in the ears. He related difficulty with bowel and bladder function to the extent he could not sense bowel and bladder movements; he did not acknowledge incontinence. He explained that he was always numb, and suggested limitation of standing with increased pain. He testified that he had a Bachelor's degree, and felt that his facial paralysis was limiting. He related having problems writing.
A May 2011 VA psychiatry note documents a history of neurological impairment for years, with progressive impairment in cognitive functioning. An assessment of cognitive disorder, NOS, was made and a GAF of 50 was assigned.
In February 2012, the Veteran was afforded a VA psychiatric examination. Examination resulted in assessment of cognitive disorder, NOS, on Axis I. On Axis V the examiner assigned a GAF score of 60, explaining that the number was reflective of cognitive impairment that became more significant when the Veteran was placed under significant stress. The examiner noted that after 1 hour of interviewing, cognitive decline was shown and that it would seem unlikely that the Veteran would be able to cognitively sustain a regular work day.
In April 2012, the Veteran was also afforded VA examinations to address his diabetes and associated peripheral neuropathy. The report notes that the Veteran worked as a personnel manager, real estate broker and career counselor until 2007. He had a Bachelor's degree in Business Management, with a minor in psychology.
The DBQ related to the cranial nerves showed neuropathy of the trigeminal nerve with moderate parasthesias and mild speaking difficulty. Muscle strength was normal. Sensation was decreased. Moderate incomplete paralysis was noted. The examiner felt that the condition had no impact on work.
The DBQ pertaining to the extremities notes neuropathy thereof. Mild parasthesias and numbness were noted, but no pain. Strength was 5/5. Reflexes were normal. There was decreased sensation to light touch. Position sense was normal. Cold sensation was decreased. There was no atrophy or trophic changes. Mild incomplete paralysis was indicated. The examiner found no impact from the conditions on work.
In terms of diabetes, the DBQ related thereto notes that the condition was treated with an oral agent. However, regulation of activities was not required. The examiner likewise found no impact on work.
The Veteran meets the criteria set forth in 38 C.F.R. § 4.16(a) as his service-connected cognitive impairment is rated 50 percent disabling and he has additional disability that combines to more than 70 percent.
Overall, the Board concludes that the evidence is at least in equipoise that the Veteran's diabetes and related complications prevent substantially gainful employment. At issue is whether it is realistically within the Veteran's physical and mental capabilities to engage in substantially gainful employment. The Veteran has a Bachelor's degree and last worked as a career counselor. He states that he left his job due to neuropathy and tinnitus. He has related that his primary impairment was inability to communicate related to the trigeminal nerve impairment. Clinical evidence has, however, shown little evidence of any speech impairment, although the Veteran is competent to report such. The neuropathy of the extremities is largely sensorial in manifestation; however, the Veteran has complained of poor sensation in the hands and feet that interferes with standing and grasping, as would be expected in a sedentary job.
As noted above, effective May 24, 2011, the RO effectuated a grant of service connection for a cognitive disorder, NOS, and assigned a 50 percent disability rating. Evidence contemporaneous to this date reflects cognitive impairment with a GAF score of 50 or 60. A GAF score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co- workers)." Richard v. Brown, 9 Vet. App. 266, 267 (1996).
Overall, the Veteran's diabetes mellitus, particularly the associated neuropathy and cognitive impairment, prevent the Veteran from engaging in substantially gainful employment. Although recent VA examination reports indicate that, individually, the Veteran's service-connected neuropathy cause no effects on work, collectively the evidence indicates otherwise. His neuropathy would preclude any physical labor and his neuropathy of the face and hands apparently resulted in him leaving his last job as a career counselor. The Veteran's cognitive disorder, NOS, also contributes to unemployability as the Veteran has mild memory loss and impairment of short and long term memory and would have difficulty in jobs with significant stress. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Thus, the claim is granted. Gilbert, supra.
The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran does not have one disability that is rated as total. Moreover, the Veteran has not asserted nor does the evidence show that one service-connected disability renders him entitled to TDIU. One examiner did note that the cognitive impairment became more significant when the Veteran was placed under significant stress after 1 hour of interviewing, and that it would seem unlikely that the Veteran would be able to cognitively sustain a regular work day. However, such limitation would not preclude the Veteran from obtaining and engaging in substantially gainful employment which is not significantly stressful. In sum, the claim for TDIU is granted as the evidence shows that his service-connected disabilities, in combination, result in an inability to obtain or retain substantially gainful employment.
ORDER
Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.
____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs